October 29, 2005

I have avoided writing the Plame story. There is too much detail to it for me to analyze it and come to a fair conclusion. A man faces criminal prosecution. The temptation is to say either this is a huge deal or this is practically nothing based on how much you'd like to see the Bush Administration wounded. How many bloggers have fallen prey to that temptation? How many bloggers have written about the indictment of I. Lewis Libby without imbuing it with their own political wishes? A man faces criminal prosecution. Let him go to trial, then.

What I would like to examine, however, is the larger picture. Can we peel our attention away from the Bush Administration and think more generally about reporters and their sources?Katharine Q. Seelye and Adam Liptak write in today's NYT about how very unusual it is to have reporters testifying against their source. Journalists rely on sources, work to develop them, and fight to keep them secret:

It is all but unheard of for reporters to turn publicly on their sources or for prosecutors to succeed in conscripting members of a profession that prizes its independence....

The three reporters [Tim Russert of NBC News, Matthew Cooper of Time magazine and Judith Miller of The New York Times] all initially resisted subpoenas for their testimony, hoping to avoid not only testifying before the grand jury but also having to appear as a prosecution witness at trial....

"This is exactly the thing," said Jane Kirtley, a professor of media ethics and law at the University of Minnesota, "that journalists fear most - that they will become an investigative arm of the government and be forced to testify against the sources they've cultivated."...

Floyd Abrams, the First Amendment lawyer, said he could not recall a previous case that depended so heavily on testimony by reporters or in which reporters could be so exposed.

"It's troubling that reporters are being asked to play so central a role, but even more troubling that reporters may be obliged to play the role of testifying against someone that they had promised confidentiality to," said Mr. Abrams, who has at various times represented The New York Times, Time, Ms. Miller and Mr. Cooper.

Mr. Fitzgerald said at a news conference yesterday that he had not been seeking a "First Amendment showdown" with the news media and had thought "long and hard" before issuing subpoenas to reporters....

"I do not think that a reporter should be subpoenaed anything close to routinely," he said. "It should be an extraordinary case. But if you're dealing with a crime - and what's different here is the transaction is between a person and a reporter, they're the eyewitness to the crime - if you walk away from that and don't talk to the eyewitness, you are doing a reckless job of either charging someone with a crime that may not turn out to have been committed. And that frightens me, because there are things that you can learn from a reporter that would show you the crime wasn't committed."...

Ms. Miller said she did not know why Mr. Fitzgerald "structured it as he did." Mr. Libby's eventual trial, she said, would bring into focus the balance the courts struck in her case.

"The case has got to raise a profound question about reporters' obligations and freedom of the press against national security imperatives," Ms. Miller said.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the case was setting a dangerous precedent. "Reading the indictment makes my blood run cold," she said. "This whole thing hinges on Russert."

Basing criminal charges on statements by reporters, she said, "puts us on completely new ground."

At the time of the Pentagon Papers and the Watergate scandal, we scorned a President livid about leakers and made heroes out of journalists who found sources and revealed secrets. Now we are in a new era, with a different President and a different war, and the journalists slip into a different position. Oh, it's all different -- you may say -- when the leak comes from the Administration, by those who would preserve the position of the powerful, in the interest of supporting a war. Are you sure you shouldn't worry about the free press right now?

[I've added "you may say" to the second-to-the-last sentence for fear of misreading.]

IN THE COMMENTS: Commenters try to turn the discussion to the subject I tried to turn it away from. I try to engage with some of this without getting dragged into the details -- one commenter keeps trying to give me long reading assignments -- and I wind up saying:

As I've said before, I'm not going to invest my time in getting into the details. I find it puzzling on the surface, and I bet most ordinary Americans with places to go and lives to live feel something fairly similar. Who's going to delve into all of this now? Only people like you who are hot to drag Bush down. I don't think Bush is hurt as much as you want him to be, because the whole thing is too hard to understand at this point. And normal folks never cared about Scooter Libby anyway. I accept that a man has been indicted. Let him go to trial. I'm a little sad that my effort to start a more general conversation about the free press got diverted into the very material I've said all along I'm not going to study. You'd have to pay me to do this sort of legal work. You are fueled by political fervor. What's my motivation to read the things you're reading? None!

Then a commenter who calls himself John Harvard gets us very nicely focused on the problem the prosecution presents for the reporters who will be called as witnesses:

I have read the indictment. Every count boils down to this: Libby made statements to FBI agents or to the Grand Jury about the content of conversations with Russert, Miller, and Cooper. These statements disagree with Russert/Miller/Cooper's statements about the content of these conversations. Therefore, Libby made false statements and perjured himself.

In other words, the case turns on the credibility of a political appointee versus the credibility of three journalists. Can you say, "field day for impeaching witnesses?" And since Libby does not have to take the stand at trial, we will be treated to the spectacle of every single thing these three journos ever wrote or said on camera being put under a microscope. Not to mention the things Russert said over his own career as a political hack. Find enough untrue or dodgy things in anything these three have said and written, and the prosecution case falls apart.

So it's Libby's freedom (his freedom through Jan 19, 2009, anyway)versus the reputations of three reporters. Which side has more to lose?

This is the true cost of turning reporters into judicial witnesses: their public record becomes a matter of, well, public record.

Is this what we are going to see: Russert shredded on the witness stand?

64 comments:

As a working journalist who took only a minimal number of journalism courses (I double majored in speech and political science) I hope ethics instructors come up with come hypothetical cases like this to spur discussion and thoughful consideration.The assumption is that people leak information in an effort to further the public good. They are exposing crime in office. They are exposing waste of taxpayer money.But if you believe that the Niger yellowcake documents were known to be forgeries, in this case the leak appears to be an effort to cover up another crime. (If you want to argue that invading Iraq on knowingly false charges is a "greater good" because it got rid of Saddam, be my guest.)

Reporters get information from corrupt sources all the time. They know the sources are corrupt and take the information with a grain of salt. But I fear these reporters may have presumed Scooter Libby to be acting in good faith and gave him trust he apparently did not deserve.

Do I fear the effect of this situation on journalists? Hell yes. Reporters don't like to be part of the news. Russert, Cooper and Miller already are and will be even more in the news if they have to testify. The simple fact is that our country is no longer functioning in a normal manner. How far back the problem goes is another discussion. But if this continues I fear other countries are going to start looking at the United States as a failed democracy.

i think you are right about the big picture and that's what fitzgerald himself spoke to yesterday. but i read the most informed article on this that was written back in july when i was browsing the blog of one of your commenters. i recommend it to fellow commenters highly: go to: http://ipinions.blogspot.com and scroll down to his second posting from yesterday. He links to the original big picture article.

Ann: Thanks for the clarification.John: We keep hearing about the "British evidence" but never much more about what it was. And if it were true, why wasn't there any evidence of which we could find in Iraq after the invasion?I know, it was sent to Syria.

Isn't this a more straightforward question of who should be above the law?

Either we decide that journalists are like priests, doctors, and lawyers and ought be above a general law or not.

I think it would be a disaster to decide that they ought be sometimes and not others. That just invites having an election or a choice of judge determine whether something is or is not a felony.

If they ought be, then the secondary question is "who is a journalist". Clergy, lawyers, and doctors are all part of a professions that make generally clear "X is" and "Y isn't" -- look on the wall for the lambskin. Journalism doesn't have that definitiveness.

Note that even in the case of the existing professions, the privilege is not absolute. Had someone told a lawyer that he was about to violate a national security law, the lawyer's secrecy obligation would not be applicable. In the case of a journalist and this type of case, it is not merely one of whether an exemption would apply to the privilege --the journalist is an active accomplice in violating the law.

While the Libby case may raise concerns about the independence of the press they are not all on one side. If journalists are used by their sources to forward a criminal enterprise, does the independence of the press require that they be exempt from the strictures that would apply to any other citizen in the same circumstances? If the press operates as a conduit for attacks by powerful institutions and individuals engaged in such activities, is that not a threat to their independence as well? Taken together, wouldn't such exemption combined with such servility reduce the press to a mere PR arm of the powers that be? Hardly the independence that we look for in our Journalist.

On another tack, is there really no precedent for journalists testifying in a criminal case? Or is this simply a particularly high profile, politically charged instance?

Who are the reporter's stakeholders in this? Sources, yes. And The Readers. The paper too. The Press in general.

Reporters at the Times and the WAPO never gave sources an absolute pledge of confidentiality. Miller did so, incorrectly, and that has led to (calls for) her firing from the Times.

Both the Times and the WAPO already had policies in place that a source's confidentiality is lost if that source lies to the reporters.

So the press has already weighed their ethical responsibilities to their stakeholders over such matters before.

Since there was never an absolute pledge of confidentiality, and since it was based on the bad behavior of the source, it seems simple enough to add the clause, "or if you try to make us your alibi for any crime apart from your conversations with us."

Dalglish has a nice position, but like most lobbyists she goes too far. She needs to come out and say that Pincus, Cooper, Novak, Russert, and Kessler have shamed their fellow journalists and let them down and drum them out of their high positions in the Press Corp, or she needs to acknowledge that source confidentiality was never an absolute and that Miller is full of it.

I didn't excuse Clinton on the perjury charges and I won't excuse Libby if he's found guilty. No one is above the law. However, the prosecutor should have investigated the original charge of the outing of an undercover agent and when he found that was untrue should have concluded his investigation. He went further and got into the politics of the situation, that was a bad move. He turned from prosecutor to National Enquirer reporter looking for dirt. It wasn't long before he had to come up with something to justify two years and two million dollars, and that's what he did.

If Miller, Russert, and Cooper had all refused to testify and had all been ready to stick up for their "rights" and protect their sources, I would have a lot more empathy for the journalists. Their lofty pleas for immunity ring a little hollow when you add in that the only reason to testify was to dirty the administration for playing politics. The administration can only be charged with trying to set the record straight on Wilson. They did this with some leaks, that's how the game is played in Washington. To turn the leak game into a criminal activity doesn't serve the public or the press.

Quxxo: I'm trying to look beyond this particular case, so I'm not focusing on who promised what or what promises reporters should make or keep. I'm talking about the effect of this prosecution on freedom of the press in the long term. And the crucial beneficiary to take into account in analyzing this is the public, quite obviously.

Moreover, the Indictment identifies conversations which Libby had prior to his June 10 conversation with Russert in which Libby told others that Wilson's wife worked for the CIA, including his July 7 conversation with Ari Fleisher. Clearly, as Patrick Fitzgerald pointed out in his Press Conference, Libby could not have learned of Plame's CIA employment during his July 10 conversation with Tim Russert if he was telling Ari Fleisher about it 4 days earlier.

These allegations have nothing whatsoever to do with Libby's recollections of his conversations with reporters, nor does this allegation that he lied under oath depend in any way upon the reporters' recollections about their conversations with Libby.

EddieP: Yes, won't the leaks game have to be played entirely differently from now on? Are we better off for that? I'd like to see the people hot for the indictments face up to the general reality that is being reshaped by all of this.

I'm talking about the effect of this prosecution on freedom of the press in the long term. And the crucial beneficiary to take into account in analyzing this is the public, quite obviously.

That's right. So then look at it from the engineer's control theory or the micro-economicist's point of view. What happens to the system with too much positive feedback, that is the wrong incentives to the players?

If reporters can be expected to be counted on for their silence when eyewitnessing a crime, what happens to the public's truth? If reporters can relax their judgment regarding when to give confidentiality and when not to, based on some absolute in law, what happens to the public's truth?

(c.f. fox news for an example of what happens when reporters do not have to worry about being fact checked themselves.)

(again offtopic, and meaning no offense but I note my word verification this time was: zbaukhou, and we all know that "zb" is pronounced as "f" in ancient sumerian.)

Quxxo: Picture yourself saying that sort of thing at the time of Watergate. You are undervaluing freedom of the press, in my opinion, because of this particular case and your hatred of the President. Take the long view.

Ditto whoever mentioned the question of "who is a journalist?" Can I declare myself an investigative journalist and start investigating things, so long as I'm *writing* articles, am I entitled to protect my sources?

I can certainly see protecting sources... say, if I'm investigating crime or a slumlord who might retaliate against my sources. But whatever I'm told that lets me direct my investigation, until I've found proof I've just got heresay.

Second point... as someone who has held a Top Secret clearance I have an attitude about "leaks." Is it actually in our best interest to encourage "business as usual" where unoffical information is passed from government officials to journalists? Sure, some of it is just unofficial, but if the administration wants it passed, why not just release the info? If the information is *supposed* to be restricted, *I* would be put in jail for passing it and if they caught the person I passed it to that person would also be in jail.

What message does it send to all the lowly peons sitting on highly classified info in labs and on bases around the country that the idiots in Washington can just toss around hints and leaks without consequence?

And these sorts of "leaks" don't stay confidential until they are supported with actual facts, they are news themselves... "sources in Washington" etc. As news consumers we've got no way of knowing if this is purposely leaked information, disinformation, or classified information leaked illegally.

I don't think Watergate is the analogy you're looking for. Perhaps the Pentagon Papers would be more apt.

At the time of Watergate, the gov't didn't know who Deep Throat was. Fitzgerald knew what Libby had testified too and had other evidence that Libby was lying. But Libby was explicitly using the first amendment and the reporters not to get truth out to the people, but to subvert those ends. Libby needed the reporters to say nothing, or to lie for him.

Should reporters be expected to say nothing or to lie for their sources? Seems vulnerable to abuse.

But at the time of Watergate I wasn't an engineer with economics training. And at the time of Watergate journalism was very much different than it is today, namely reporters weren't considered cultural stars like they are today. Reporters incentives weren't Washington Brownstones in the same school and shopping districts as the President's Men, and reporters weren't on TV 24x7 to always be asked their opinion. In short, if there is a penalty to reporting right now, it is very much the journalist's fault for their excesses over the past 20 years. And so a bit of negative feedback is a very good thing.

The Post follows current American news industry practice of killing any story based on evidence from a confidential source if a government honcho privately denies it. A flat-out "we didn't do it" is enough to kill an investigation in its cradle. And by that rule, there is no chance that the Managing Editor of the Washington Post, Bob Woodward, would today run Deep Throat's story of the Watergate break-in.

And that sucks.

Read Palast's whole article.

And here is another take on it July 1974 Did the Press Uncover Watergate? Edward Jay EpsteinPerhaps the most perplexing mystery in Bernstein and Woodward’s book is why they fail to understand the role of the institutions and investigators who were supplying them and other reporters with leaks. This blind spot, endemic to journalists, proceeds from an unwillingness to see the complexity of bureaucratic in-fighting and of politics within the government itself. If the government is considered monolithic, journalists can report its activities, in simply comprehended and coherent terms, as an adversary out of touch with popular sentiments. On the other hand, if governmental activity is viewed as the product of diverse and competing agencies, all with different bases of power and interests, journalism becomes a much more difficult affair.

In any event, the fact remains that it was not the press which exposed Watergate; it was agencies of government itself. So long as journalists maintain their usual professional blind spot toward the inner conflicts and workings of the institutions of government, they will no doubt continue to speak of Watergate in terms of the David and Goliath myth, with Bernstein and Woodward as David and the government as Goliath.

Thinking back over what I posted led me to a fairly strong conclusion that the "press" should not have a special source protection.

Why?

Let me turn it on its head. Why the press?

The conventional answer twenty years ago would have been "because exclusively through them the public is informed".

But that really isn't true anymore is it? And to the degree that it is true the degree to which it is rapidly diminishing.

If I am a source, I can just send Drudge an email, or Ann, or start up my own blog with a gmail account, or spam a whole lot of people I can expect to further distribute the information.

So what justification is there for a special press exemption? That The New York Times has greater credibility than some other mass communication outlet? Bad argument to raise this morning after reading how the New York Times edited out the meaning of a dead soldier's last letter.

The appeal for an exemption isn't based on the public's need to know. It is based on the hope of a dinosaur that a few special privileges will delay its extinction.

Ann, excellent! I'm glad to see the focus on the bigger questions regarding the media and the role of journalists. I have intense interest in the topic, having spent years as as working journalist, as a reporter, bureau chief, assistant city editor, and assistant copy desk chief.

There's another piece of your "larger picture," though, that I think needs to be considered, a fact related to Judy Miller which has broad, broad implications for the profession and, by extension, all of us.

Judy Miller never wrote a story on Plame and her role. This was not a case where a subpoena was issued based on what was written in an article, either in terms of factual content or in terms of wanting to discover the name of source labeled confidential in an article. Yet she was still subject to subpoena. Unlike the other two reporters, she does INDEED seem to have been used as an investigative tool, with her personal statements--not any public work product--being utilized as the basis for criminal charges.

This does not get mentioned often enough, and yet, from the standpoint of journalism issue, it's what I find most disturbing. Think about it. The implications are profound and they go beyond the issue of "source" and to the very role of a journalist. The ramifications of the precedent that has been set should disturb the lowliest reporter on the lowliest beats.

As it happens, during my newspaper career I faced a subpoena (ultimately quashed) that speaks to this. I was covering a public township meeting. A topic came up during, if I recall correctly (this was in the late '80s) the public comment section. It was so brief and appropos of nothing that I didn't even take notes beyond listing the topic. However, as the meeting proceeded, two people in the back of the room, near where I was sitting, continued a fairly heated, loud discussion on the topic, much of which I did in fact overhear. I never wrote a story about that particular topic/conversation (hell, wasn't even tempted--there was no story).

Eventually, a lawsuit ensued, which alleged that statements made by one of those people were untrue, malicious, and caused harm publicly to a local juvenile institution. My testimony was sought because it was my very presence, apparently, that made their (private, though loud) conversation public! My notes--all of them--from the entire meeting were also sought.

The subpoena was eventually thrown out, based on press protections, the fact that I never wrote a story in the first place, and repudiation of the idea that my mere presence on the scene as a journalist didn't make their statements public. These were all generally accepted positions.

That was then. But what about now? Is a reporter, even if a story is never written and even if he or she is doing interviews or trying to cover other stories that are unrelated (at least initially), vulnerable to being dragged into legal matters by mere presence at a particular time or place? Do we think this is a good thing?

I covered literally hundreds of meetings over time and probably have written thousands of articles. My blood runs cold at the idea of reporters being that vulnerable. In my case, the subpoena issue came up a couple of years after the initial meeting. If I had been forced to testify about what I remembered (and I did actually recall the incident and a general outline of what was said and by whom) but was a little inaccurate due to the passage of time, would I have been vulnerable to perjury charges? Would I have had to hire a personal lawyer? (The harassing phone calls and unexpected visits st odd hours from lawyers and investigators on my doorstep in another state was bad enough.)

The mind boggles at the can of worms we are opening.

(Btw, I'm no fan of Judy Miller and I do think there are significant problems with how, when, and to what extent confidential sources are used snd how they are characterized in articles. I do think there's too much "coziness" between government and media, especially at the national level.)

An organized crime (OC) family starts a blog; call it the "Mulberry Street Rant." The Rant publishes reflections on life under house arrest, cannoli recipes, etc. To make the Rant even more MSM-like, the bloggers go out and do conventional interviews, photography/video, etc. Still more MSM trappings: the Rant has its own physical premises, a building with a laptop and a DSL line.

Now for the OC trappings: the blog contributors act as the conduits for information between the capi, footsoldiers, associates, etc., of the family. Rather than talking to a subordinate or senior, the mob guys get "interviewed" by a Ranter, who then goes and "interviews" another OC figure. The Mulberry St. Rant building contains not only the laptop and DSL line, but also several voice lines, which are used to make phone calls in furtherance of the OC family's business. And the Rant building further houses a set of physical file cabinets and strongboxes, which, in addition to containing the Rant's backup CDs and printouts of memorable postings, also have records and proceeds of the OC family's other activities.

Now apply any sort of absolute or near-absolute press confidentiality privilege to the above fact pattern.

"However, the prosecutor should have investigated the original charge of the outing of an undercover agent and when he found that was untrue should have concluded his investigation. He went further and got into the politics of the situation, that was a bad move."

Eddie, Fitzgerald made it clear that Libby's apparent lies made it impossible for him to properly investigate the original charge. Furthermore, he did not find the "outing" to be untrue - he specifically said, more than once, that the agent was "outed".

Sorry, I know this thread is on the media, but I couldn't let that stand.

"But I fear these reporters may have presumed Scooter Libby to be acting in good faith and gave him trust he apparently did not deserve."

Assuming Libby improperly gave secrets, he violated the public trust, not the reporters'. What he gave them was true information.

Which is interesting because it suggests that the interests of the reporters are not the same as thaat of public.

Another illustration of an unknowing divergence of interest might be the Pentagon papers. The NYT assumed that they were secret because they would undercut our Vietnam policy. But buried in them were sections on Russian reaction to events in Vietnam that if closely analyzed, would have revealed a very closely guarded secret --that we were intercepting and decoding Brezhnev's car phone conversations. In the event the Russians did not catch on until the secret was revealed again about 5 years later when Jack Anderson reported on Russian duplicity in arms control talks, based on intercepted phone conversations.

Perhaps Anderson ought to have known better, but the NYT would have been unaware of what it was revealing. WHen the press claims an unfettered right to itself determine what should and should not be published, it risks severe damage to national security because the press doesn't have sufficient information to make a good determination. In the process a public interest gets little or no attention.

I am reminded of how bad the press' judgment is each time I look at the tabloids while waiting in line at the grocery checkout. Did you know there is a Russian submarine in the Great Lakes or that we have a secret moon base?(grin).

It was Libby himself who roped in the press by trying to shift the blame on them. This is all perfectly of a piece with this administration's track record of contempt for and subversion of the press. This is just one more notch in their belt in that regard.

You heard a different press conference than I did. Fitz said a couple of times that Plame's cover was blown, I perked up at that. He went on to state that it was disclosed that she worked at the CIA which was classified information. He considered that to be a blown cover. If it's classified information, it shouldn't have been revealed, and it's what he hung the indictment on. But that is not the same as outing an undercover agent under IIPA, the original charge.

She was not undercover at the time of the disclosure and hadn't been for more than 5 years. My point was that Fitz could have determined that in his first week. When he determined that she wasn't undercover, there was no crime. Should have packed his bags. Instead he went fishing.

All this should have happened before he ever got around to questioning Libby. You give a prosecutor a grand jury, plenty of money and time and he is going to indict someone. That's what happened here. Regards

If it's classified information, it shouldn't have been revealed, and it's what he hung the indictment on. But that is not the same as outing an undercover agent under IIPA, the original charge.

She was not undercover at the time of the disclosure and hadn't been for more than 5 years. My point was that Fitz could have determined that in his first week. When he determined that she wasn't undercover, there was no crime. Should have packed his bags. Instead he went fishing.

You're arguing in circles Eddie.

Fitzgerald didn't say that it wasn't "the same as outing an undercover agent under IIPA", you did. Neither did he say that "She was not undercover at the time of the disclosure and hadn't been for more than 5 years." That's your contention, not Fitzgerald's. You're simply reading your own assumptions into the idictment and then complaining that Fitzgerald didn't act according to them. There is no evidence whatever that Fitzgerald shares your view and every indication that he does not. Stop kidding yourself.

Isn't the point that the information was available to Libby two ways: 1. because he had access to it as classified information, and 2. because lots of folks already knew and were talking about it? If it was #1, as Fitzgerald thinks, it would be a crime (right?), but if it were #2, there would be no crime. That's Libby's motive to say it's #2 if it was #1. He could just have easily have gotten it by #2, but since he happened to get it by #1, he's got a problem, and he -- per Fitz -- perjured himself, committing a crime, thwarting the discovery that he committed the other crime and justifying prosecution. The actual classified information, however, was probably not significant, as many have pointed out, because plenty of people already knew it. Am I wrong? I haven't studied the facts closely.

I do not think your division is legally correct though I am not positive.

If I have a security clearance and receive by public gossip information that I know is classified, I am required to treat it as classified until and unless it is formally declassified.

This is not based on examining statutes or case law, but on dimly remembered long ago lectures on responsibilities with a security clearance.

Can this result in seemingly silly things. Yep.

But there also is a justification ... there is a difference between an Aviation Week article saying that a sonobuoy has a 6 hour working time and a naval officer with a secret clearance and knowledge handing somone the Aviation Week article and by implication confirming it.

John: You're assuming a situation where the person knows the info is classified. Lots of things are classified and a person with access to classified info couldn't possibly know everything that is classified. If a reporter gives you info that also happens to be classified and you pass it on without checking to see if it's classified, is that a crime? On that theory that it's not, that's Libby's motivation to lie (if he lied).

If a reporter gives you info that also happens to be classified and you pass it on without checking to see if it's classified, is that a crime? On that theory that it's not [a crime, that's Libby's motivation to lie (if he lied).

Is this what you are saying? On the theory that it was not a crime, Libby's was motivated to perjure himself? (if he lied.)

Quxxo: Yes. Is that the best theory of Libby's motivation to lie? (If he lied.) Of course, perjury is itself a crime. It's a very serious thing, which is why we need to see a motivation to do it to believe that he did it.

If the State Department says this is your biography, Mr. Libby also served as the Legal Adviser to the U.S. House of Representatives’ Select Committee on U.S. National Security and Military/Commercial Concerns with the Peoples' Republic of China... Mr. Libby served in the United States Department of Defense as Principal Deputy Under Secretary (Strategy and Resources), and later was confirmed by the U.S. Senate as Deputy Under Secretary of Defense for Policy.and the Wikipedia adds this: on the board of the RAND Corporation, ... He has consulted for the defense contractor Northrop Grumman. He has also been active in the Defense Policy Board of the Pentagon while it was chaired by Richard Perle.)

Libby co-authored the draft of the "Defense Planning Guidance" with Wolfowitz for then-Defense Secretary Dick Cheney in 1992

And if you're a lawyer from Yale (not a 2nd tier law school) (same law school that Clarence Thomas grduated from), then if a reporter tells you that person X works for the CIA, then before you pass that along, then yeah, SF312 Non Disclosure Agreement (pdf)this form that you signed should worry you:

CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENTAN AGREEMENT BETWEEN AND THE UNITED STATES1. Intending to be legally bound, I hereby accept the obligations contained in this Agreement in consideration of my beinggranted access to classified information. As used in this Agreement, classified information is marked or unmarked classifiedinformation, including oral communications, that is classified under the standards of Executive Order 12958, or under anyother Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security;and unclassified information that meets the standards for classification and is in the process of a classification determinationas provided in Sections 1.2, 1.3, and 1.4(e) of Executive Order 12958, or under any other Executive order or statute thatrequires protection for such information in the interest of national security. I understand and accept that by being grantedaccess to classified information, special confidence and trust shall be placed in me by the United States Government.2. I hereby acknowledge that I have received a security indoctrination concerning the nature and protection of classifiedinformation, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosingthis information have been approved for access to it, and that I understand these procedures.3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified informationby me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. Ihereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient hasbeen properly authorized by the United States Government to receive it; or (b) I have been given prior written notice ofauthorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible forthe classification of the information or last granting me a security clearance that such disclosure is permitted. I understandthat if I am uncertain about the classification status of information, I am required to confirm from an authorized official thatthe information is unclassified before I may disclose it, except to a person as provided in (a) or (b), above. I further understandthat I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information.4. I have been advised that any breach of this Agreement may result in the termination of any security clearances I hold;removal from any position of special confidence and trust requiring such clearances; or the termination of my employment orother relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I havebeen advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, ofUnited States criminal laws, including the provisions of Sections 641, 793, 794, 798, *952 and 1924, Title 18, United StatesCode, * the provisions of Section 783(b), Title 50, United States Code, and the provisions of the Intelligence IdentitiesProtection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right toprosecute me for any statutory violation.

Quxxo: So it "may constitute" a crime? Well, now we have to go read all those criminal sections... Anyway, are you saying that Libby didn't have a motivation to lie? Good news for the defense team! And if it is a crime, why didn't Fitzgerald indict him for it? Which side are you on? Or do you just assume that when I write something, I'm on the opposite side from you?

I have not had any luck putting together a logical scenario in my mind for why Libby lied, assuming that he did. I end up thinking that he was confused about something or something was later disclosed to him.

Did he assume that the fact that he had received the Valerie Plame info from several non-reportial sources, one of whom was inimical to his interests (the CIA) would remain concealed? When his own notes that he gave the prosecutor show it? Did he not read his notes?

I also wonder whether he had his notes when he testified to the grand jury?

If he was denied access to his notes, I think the defense could make a lot from the fact that his own notes are being used to impeach him. Where is the intent? If he had intended to deceive, wouldn't he have ditched the notes rather than providing them?

Anyway, he knew or should have known it was a crime to be negligent with classified information, and he was in a position to understand that anyone that worked at the CIA may be a covert operative, and if he was unsure of her status, that he had a legal obligation to confirm that the information was unclassified.

And then, if you look at the indictment itself, you will find it statesGo to page 5 of the indictment. Top of the page, item #9.

On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Divison. LIBBY understood that the Vice President had learned this information from the CIA.

This is a crucial piece of information. The Counterproliferation Division (CPD) is part of the CIA's Directorate of Operations, i.e., not the Directorate of Intelligence, the branch of the CIA where 'analysts' come from, but the DO, where the spies, the 'operatives', come from.

Libby's a long time national security hand. He knows exactly what CPD is and where it is. So does Cheney.

If Libby heard it first on July 10 from Tim Russert as he claims and Russert denies, then Libby clearly had a legal obligation to confirm her status before discussing it with anyone else not classified and in a need to know.

No Ann, way back when I was merely wondering if you really meant to say "not a crime", because I think what you wrote (even apart from the articles I quoted later) show that it was a crime, and I honestly wonder why you believe a big time lawyer and defense d00d would commit a crime to cover up a non-crime.

If you are negligent with classified information, you will probably get a slap on the wrist, perhaps termination of employment, and if you're an enemy of the state (Sandy Berger) a misdemeanor.

But if you are a human or a patriot (both of Libby's claims) then if you accidentally out a CIA agent, you will want the CIA to protect their other agents in the field, and you will want to let the authorities know about the disclosure as soon as possible, that's if your patriotism comes first.

Quxxo: "A lawyer would commit a crime to cover up a non-crime? Weird." Go back to my original 2 categories and be clear about what you're talking about. Obviously, I posited that one way it's a crime and the way he told it it's not a crime. If I'm wrong, explain why. Don't annoy me with sarcasm. I didn't read past the line I just quoted, because you annoyed me and because it's full of details that I'm not going to get bogged down in, as noted in the original post. I'm not going to piece through the evidence. I'm just asking my question.

Reread what John wrote, because that is what I have been told throughout my career. If you hear about classified information from non-classified sources, you are still not allowed to treat that information as anything but classified.

When a submariner reads in the New York Times that Judith Miller reports that the Los Angeles class regularly operates at 1000 feet and 30 knots, does that mean the submariner can now tell other people this information? Or even point other people to the NYTimes article?

I mean, let's say he just failed to perform the duty he had to check if it was classified. That's less culpable than if he revealed info he knew from classified sources. I still don't know if that is a crime. If it is, why wasn't he indicted for the thing he SAID he did, as opposed to being indicted for lying.

Ann, we don't know why Fitzgerald has not indicted anyone so far for blowing the agent's cover. He is not allowed to tell us. It may be that there was not enough evidence to show beyond reasonable doubt that Libby (or any other leaker) knew that Ms. Plame was undercover, or that the information was classified.

I would assume Libby's motivation for lying, if he lied, was he thought he had committed a crime.

Right, "not allowed." But is it a crime? You've still not answered that.

Is it a crime? That would seem to be something only a judge and jury can determine. But as someone that holds a security clearance, I can tell you that I would be very concerned that yes, it was negligently handling classified information and could very well be a crime. We get security briefings all of the time, and the only message I clearly get from all of them, is to be extremely careful with this stuff, and to err on the side of caution.

let's say he just failed to perform the duty he had to check if it was classified. That sounds like negligence to me, which according to the NDA, can lead to criminal charges.

If it is, why wasn't he indicted for the thing he SAID he did There are many answers to this. A bird in the hand is worth two in the bush. (no pun intended). Other lawyer bloggers have suggested that there is in fact some grey in there and that a reasonable prosecutor will charge with what he has, not what he wants. Fitzgerald said that the obstruction of justice prevented his investigation from going further. Other lawyer bloggers suggest there may still be sealed indictments. And there appears to be a new grand jury, already impaneled, and there appears to be nothing that doesn't let that grand jury indict on additional charges if the evidence points that way. Others say that Libby isn't where it ends, and that this is a squeeze on Libby to roll over on Rove or Cheney or ..., and that these charges were charged just to put the proper amount of squeeze on Libby, as well as to speak to the Whitehouse as to where this case is leading.

Anyway, I encourage you to read and blogroll firedoglake.blogspot.com, and talkingpointsmemo.com, they've been pretty much on top of everything, and they write much better than I.

Rawstory.com has been very accurate in their reporting as well. And they usually have the story one to two days before it gets reported elsewhere.

And don't forget Lawrence O'Donnell over at the Huffpo!

There's Mark Kleiman. And the Booman. Lawyers one and all!

I am heartened to see that you want more information on this. I am sanguine this will be the first step in the people reclaiming our government.

Wild: "I would assume Libby's motivation for lying, if he lied, was he thought he had committed a crime." Right, and that assumes that the thing he said in the lie was not a crime, right? But if what he said was also a crime, why would he lie?

I doubt the fact that Valerie Wilson worked (in 2003) for the CIA is really hush-hush secret information. It is alleged in the indictment that it was "classified" but I suspect that is based on some broad vague classification of all CIA employment.

My thought is along the lines of the naval base phonebook at San Diego which, at least 30 years ago, was stamped "confidential" on the cover, was hanging in phone booths on the piers, and had , inter alia, pizza delivery ads inside it.

Quxxo: As I've said before, I'm not going to invest my time in getting into the details. I find it puzzling on the surface, and I bet most ordinary Americans with places to go and lives to live feel something fairly similar. Who's going to delve into all of this now? Only people like you who are hot to drag Bush down. I don't think Bush is hurt as much as you want him to be, because the whole thing is too hard to understand at this point. And normal folks never cared about Scooter Libby anyway. I accept that a man has been indicted. Let him go to trial. I'm a little sad that my effort to start a more general conversation about the free press got diverted into the very material I've said all along I'm not going to study. You'd have to pay me to do this sort of legal work. You are fueled by political fervor. What's my motivation to read the things you're reading? None!

I find it puzzling on the surface, and I bet most ordinary Americans with places to go and lives to live feel something fairly similar. Who's going to delve into all of this now? Only people like you who are hot to drag Bush down.

No Ann, I am interested in this as I am a father of two young daughters of draft age. And I am interested in this as I thank and respect my father for fighting for my freedom during WWII. And I am interested in this as I love and value the great American experiment with democracy. And because I grew up despising ordinary germans of the 30s and 40s and I am scared now, to find out how close we are in 2005 to becoming those ordinary germans of 80 years ago. And because I too believe that George Bush has not been hurt enough by this.

You may also wish to read and view the shrillblog, you'll find a large number of former Bush Administration officials, of conservatives, of columnists, and yes of liberal professors that are all worried about this administration.

What's my motivation to read the things you're reading? None!

If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be. --Thomas Jefferson

And best wishes to you if you think you can influence ordinary Americans with sarcastic glop like that. Your response to me is the typical lefty shaming that I have learned to loathe all these many years in Madison.

Ann, in an effort to steer the discussion in a productive direction, let me state that I have read the indictment. Every count boils down to this: Libby made statements to FBI agents or to the Grand Jury about the content of conversations with Russert, Miller, and Cooper. These statements disagree with Russert/Miller/Cooper's statements about the content of these conversations. Therefore, Libby made false statements and perjured himself.

In other words, the case turns on the credibility of a political appointee versus the credibility of three journalists. Can you say, "field day for impeaching witnesses?" And since Libby does not have to take the stand at trial, we will be treated to the spectacle of every single thing these three journos ever wrote or said on camera being put under a microscope. Not to mention the things Russert said over his own career as a political hack. Find enough untrue or dodgy things in anything these three have said and written, and the prosecution case falls apart.

So it's Libby's freedom (his freedom through Jan 19, 2009, anyway)versus the reputations of three reporters. Which side has more to lose?

This is the true cost of turning reporters into judicial witnesses: their public record becomes a matter of, well, public record.

A little voice inside me says that it might be fun to put reporters on the stand every now and then. After all who has not been outraged by an occasional unanswerable media error/slant/spite or been regretfully minded of Twain's "Don't argue with someone who buys ink by the barrel.."

Then I straighten up and say, "But fun is not a valid reason to decide an important public policy issue on freedom of the press..."

Wild, do you think the case could be proven at trial without calling Russert/Miller/Cooper to the stand?

The way I read the indictment, the specific false statements alleged are of the form "When I spoke to Russert et al, I said X." In order to prove the allegation, "No, Scooter, when you spoke to them, you said not-X," don't you have to call the other parties to the conversations as witnesses?

john harvard, absolutely, the reporters need to be called up to make the case. I'm just saying that the issue is bigger than Libby's credibility vs. the reporters'. Also called will be those government officials who discussed Ms. Plame's position with Mr. Libby prior to Mr. Libby's conversation with Russert (as outlined in the indictment).

Wild, the issue may indeed be bigger than the reporters' testimony; that is to say, the reporters' testimony alone may not be SUFFICIENT to prove the case. But I think the reporters' testimony is NECESSARY to prove the case. Or, to put it another way, if you impeach the reporters' credibility, you potentially create enough reasonable doubt to get Scooter off.

My reading of the indictment is not that Libby is being charged with lying to Russert &co; rather, he is being charged with lying to the FBI and GJ about what he said to Russert &co. Therefore, it is necessary to establish a reliable record of what he said to Russert &co. If the trial jury does not believe Russert &co, all that is left is Libby's version of these conversations, and the jury must acquit.

Or do I have it wrong? Is there a count left standing if we assume arguendo Libby's version of the conversations with the reporters? I don't see it, but I could be wrong.

john harvard, OK say the reporters' credibility is called into question. We buy that Libby first heard about Plame from Russert. What happens, then, when Cheney, CIA officials, Rove, etc. testify that they discussed Plame with Libby prior to that? (I have to assume they've already testified as such since it's in the indictment.) Now who is lying?

Wild, in the indictment, Libby is not charged with lying about who gave up Plame. He is charged with lying about the content of his conversations with reporters. The content of these conversations happens to be about who gave up Plame, but they might as well be about who scored the winning run in the World Series.

In the indictment, Libby is never charged with lying to the FBI or GJ about when/how he learned Plame's identity and role. So the testimony you would proffer would tend to show that, prior to the conversations with Russert/Cooper/Miller, Libby knew all about Plame and her works.

To which Libby's attorney would respond, "so what?"

Even if Libby were the author, editor and publisher of "The Unauthorized Valerie Plame Biography," that does nothing to prove or disprove the content of his conversations with the reporters. It may show that he lied to the reporters if his version of the conversations is believed, but so what?

The defense could even stipulate that Libby knew everything there is to know about Plame at all times and places, thus keeping Rove, Cheney, et al off the stand.

And then the only issue at trial would be whose version of the conversation is true: Libby's or Russert/Miller/Cooper's.

But look at the second perjury count (count five). Libby says that all his info on Ms. Plame was coming from reporters. (He doesn't just testify that this is what he said to Cooper - he says it's what was the case.) Then you bring in those who discussed Plame with Libby prior to his contact with the press and they tell a different story (presumably!).

Yes, Wild, you make a good point about Count Five (p. 20 of the indictment for those who are reading along with us). I had not noticed this before. This is apparently (I say apparently because the indictment quotes selectively from the GJ xcript) a direct statement from Scooter to the GJ that, at the time of the Cooper conversation, Scooter did not know about Plame from any official source.

So even if the defense completely trashes the reporters, this statement remains as the gibbet from which Scooter can hang.

If I were defending Scooter, I still might consider stipulating to all pre-July official knowledge of Plame, just to deprive the jury of the spectacle of Rove, Cheney, and various CIA muckety-mucks on the stand.

It would be interesting to see this statement in the context of the full GJ xcript. Some type of argument could be made that, in the course of questioning clearly directed to him as a hostile witness/suspect, Scooter lost track of which state of mind was at issue: his real state of mind, or the state of mind he was feigning to reporters in order to protect national security information.

But this does make it a tougher nut to crack.

Heck, as a prosecutor, I might allow the other 4 counts to be dismissed, just so I could focus the trial jury's attention on this one, limit my witnesses to Cooper (the least weird of the bunch), and try to get the defense to stipulate in order to avoid putting more WH officials on the stand at trial.

Then again, as a prosecutor, I might enjoy putting Scooter in the position of having to impeach Rove &co's credibility. . . .

It would be interesting if they used the defense you were suggesting to see how the question of motive would be addressed. What would be the motive for the reporters, who fought having to testify at all, to lie, vs. Libby's motive? Libby telling reporters about a CIA operative = potential crime, reporters telling Libby, not a crime.

The defense doesn't have to show that the witnesses are lying. It's enough to show that their memories are unreliable, or that they have a disregard for the precision of their statements.

Another tactic might be to show that the reporters' and Scooter's statements don't disagree that much. Note that the indictment does not contain direct quotes from the journos, as it does from Libby. We are given Libby's own words: "I told Russert X." We are not given a similar "No, he told me Y" from Russert. Perhaps this is because X and Y are not that different.

But that's speculation. My point is that you do not have to prove a witness is a liar in order to impeach her. You just have to create reasonable doubt in the jury's mind that maybe they shouldn't believe everything she is saying.

The proverbial little old lady in tennis shoes has no motive to lie, and appears entirely trustworthy, until she mentions that Harry Truman is still president. . . .